Special procedures before the JEX: applications and enforcement difficulties

Enforcement procedures sometimes require rapid and effective intervention by the enforcement judge (JEX). The legislator has provided for two special procedures, adapted to urgent situations: the procedure for enforcement difficulties and the procedure on application. These procedures enable bailiffs and creditors to obtain court rulings quickly, without having to go to court. ordinary procedurelonger and more formal.

Enforcement proceedings

Conditions for referral by the bailiff

A bailiff who encounters an obstacle during his enforcement operations may refer the matter directly to the JEX. Article R. 151-1 of the Code of Civil Enforcement Procedures (CPCE) provides for this possibility when the difficulty "hinders the course of his operations".

Case law on these matters is rare. A typical example is a case of resistance to eviction on medical grounds, where the JEX authorised the eviction on condition that the bailiff was assisted by a medical expert (CA Angers, 4 March 2002).

This procedure is not intended to challenge the substance of the law, but to resolve a technical blockage.

How the procedure works

The procedure begins with a request from the bailiff to the court registry (art. R. 151-2 CPCE). This request must present:

• The enforcement order concerned
• Description of the difficulty encountered
• Documents sent to the bailiff

The adversarial principle is respected. Article R. 151-3 requires the bailiff to inform the interested parties immediately:

• By entry in the minutes
• Or by registered letter with acknowledgement of receipt

This information is equivalent to a summons to appear. The JEX rules after a hearing at which the parties and the bailiff are heard.

The decision does not have the force of res judicata in the main proceedings (art. R. 151-4 CPCE). Its sole purpose is to unblock enforcement.

Proceedings on application

Field of application

Cases may be referred to the JEX by petition in a number of situations provided for by law:

1. For authorisation to precautionary measures (art. R. 511-1 CPCE)
2. To derogate from the usual conditions for compulsory execution:
   • Performance outside normal working hours (art. L. 141-1 CPCE)
   • Performance on public holidays or non-working days
   • Entering premises occupied by a third party
3. For measures to preserve seized property:
   • Sequestration for seizure of assets (art. R. 211-2, R. 211-16, R. 211-19 CPCE)
   • Seizure for sale in the hands of a third party (art. R. 221-28 CPCE)
   • Retention during a seizure and reclamation (art. R. 222-23 CPCE)

Article L. 213-6 of the Code de l'organisation judiciaire establishes the jurisdiction of the JEX, which is confirmed by legal doctrine and the travaux préparatoires.

Practical details

The application is governed by the rules set out in article 494 of the Code of Civil Procedure:

• Presentation in duplicate
• Detailed motivation
• Precise indication of the documents relied on

In urgent cases, it may be presented at the judge's home.

The order is reasoned and enforceable (art. 495 CPC). Crucially, it does not have to be served prior to enforcement, which preserves the element of surprise.

Be careful, however: the Cour de cassation requires that copies of the application and the order be left with the person concerned when the order is enforced (Civ. 2e, 10 February 2011, no. 10-13.894).

Appeal procedures

Retraction proceedings

The order on request may be challenged by way of summary proceedings. This remedy is not expressly provided for in the CPCE, but it follows from ordinary law.

The person against whom the order is made may ask for it to be withdrawn or modified before the JEX itself. This procedure re-establishes the adversarial process.

Although the legislation does not specify a time limit, case law considers that this appeal must be lodged as soon as possible after learning of the order.

The call of the prescriptions

Appeals against JEX orders are governed by article R. 121-20 CPCE:

• Fifteen days from notification
• Proceedings with compulsory representation
• No suspensive effect

For orders on request, thecall is only admissible if the application for interim injunction has already been lodged, except in the case of a manifest misuse of powers.

The Court of Cassation has upheld this requirement for prior appeal (Civ. 2e, 18 October 2012, no. 11-20.114).

Distribution of funds

Amicable procedure

After a successful seizure, the distribution of the sums obtained is, in principle, amicable:

• In the case of movable property, the sales agent has one month to complete the distribution (art. R. 251-9 CPCE).
• In real estate matters, a distribution plan is drawn up by the pursuing creditor

This amicable phase is preferred for its speed and low cost.

Intervention by the JEX

The JEX intervenes in two situations:

1. To extend the deadlines for the out-of-court phase (on application)
2. In the absence of an amicable agreement:
   • On referral from the distribution agent (art. R. 251-8 CPCE)
   • On referral by an interested party in the event of failure to meet deadlines (art. R. 251-10 CPCE)

In real estate matters, the JEX approves the proposed amicable distribution (art. R. 332-8 CPCE). The homologation order is not subject to appeal, but may be appealed to the Supreme Court (Civ. 2e, 18 October 2012, no. 11-20.314).

Judicial distribution becomes necessary when the parties fail to reach an agreement. The judgement establishing the distribution order may be appealed within fifteen days, with suspensive effect (art. R. 333-3 CPCE).

Maximising the effectiveness of these special procedures

These special procedures, which are less formal than the ordinary procedure, offer undeniable advantages in terms of speed and efficiency.

For creditors, the application procedure makes it possible to obtain urgent authorisations without alerting the debtor. The element of surprise is often decisive in debt recovery.

For bailiffs, the hardship procedure offers a rapid way of resolving obstacles encountered on the ground.

However, these procedures involve procedural subtleties that can prove fatal for the uninitiated. Sound advice is essential in choosing the appropriate course of action depending on the urgency of the situation and the nature of the blockage encountered.

Scrupulous compliance with formalities is essential, particularly for proceedings on application, where the slightest irregularity may result in the order being revoked.

If you are faced with a blockage in the collection of a debt, our firm can guide you in choosing the most appropriate procedure and help you implement it. Contact us for a personalised analysis of your situation.

Sources

• Code des procédures civiles d'exécution: articles L. 141-1, R. 121-24, R. 151-1 to R. 151-4, R. 211-2, R. 211-16, R. 211-19, R. 221-28, R. 222-23, R. 251-8, R. 251-9, R. 251-10, R. 332-8, R. 333-3, R. 511-1
• Code of judicial organisation: article L. 213-6
• Code of civil procedure: articles 494, 495
• Court of Cassation, 2nd Civil Division, 10 February 2011, no. 10-13.894
• Court of Cassation, 2nd Civil Chamber, 18 October 2012, no. 11-20.314
• Angers Court of Appeal, 4 March 2002, Juris-Data no. 2002-187473
• "Juge de l'exécution", Répertoire de procédure civile, Dalloz, Laurence Feuillard, October 2020